WORLD TRADE  
ORGANIZATION  IP/C/W/554 
28 March 2011  
 
(11-1508) 
Council for Trade-Related Aspects  
of Intellectual Property Rights Original:   English 
 
 
 
ARTICLE 27.3(B) AND THE LEGALIZATION OF BIOPIRACY:  TRENDS,  
IMPACTS  AND WHY IT NEEDS TO BE AMENDED 
 
Communication from the Plurinational State of Bolivia  
 
 
 The following communication, dated 1 March 2011, is being circulated at the request of the 
Delegation of the Plurinational State of Bolivia.  
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I. INTRODUCTION 
1. The purpose of this submission is to contribute to the work programme of the TRIPS Council 
under the review of Article 27.3(b) of the Agreement, which is long overdue. 
2. As noted in IP/C/W/545, the review of Article 27.3(b) is an issue within the mandate of the 
Doha Work Programme under paragraph 19 of  the 2001 Doha Ministerial Declaration 
(WT/MIN(01)/DEC/1). It is also an issue within  the mandate of the Doha Work Programme under 
Implementation Related Issues and Concerns. In this  regard, paragraph 12 of  the Doha Ministerial 
Declaration mentions the adoption of the Decisi on on Implementation Related Issues and Concerns 
(WT/MIN(01)/17) to address a number of implemen tation problems faced by Members.  It also 
clearly states that the "negotiations on outstanding implementation issues shall be an integral part of 
the Work Programme".   
3. In the 15 years since the adoption of Article  27.3(b), we have witnessed a rush towards 
patenting of life forms and parts thereof, a trend which is most concerning due to the ethical and moral implications as well as the adverse impacts in areas of great importance for developing countries and indigenous peoples, such as food and agriculture, climate change and health, among 
others. 
4. The aim of this submission is to highlight these trends and some of their impacts and resulting 
concerns, all of which support the call to amend Ar ticle 27.3(b) of the TRIPS Agreement to prohibit 
the patenting of life forms and parts thereof. 
II. TRENDS IN PATENTING OF LIFE FORMS 
5. Prior to the adoption of Article 27.3(b), life forms and components of life forms (such as 
cells, genes, biochemical substances and proteins) we re generally not considered to be patentable. 
6. The adoption of Article 27.3(b) established that Members shall provide patents to 
microorganisms, microbiological processes and non-bi ological processes.  Article 27.3(b) also 
provided Members the possibility to provide patent s on plants and animals as well as essentially 
biological process.  Thus the adoption of the Articl e promoted a new phase of extension of capitalism 
into nature never seen before, that is a llowing the privatization of life itself. IP/C/W/554 
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  7. Article 27.3(b) triggered a process which led to the proliferation of policies and laws that 
permit life forms and parts thereof to be considered patentable subject matter.  Article 27.3(b) also 
promoted the expansion of the scope of invention w ith the resulting effect of patents being granted to 
discoveries of the functions and characteristics of a living organism or parts thereof. 
8. As a consequence, during those 15 years there h as been a proliferation of patents and patent 
applications involving a wide range of life forms, including human life itself, and parts thereof such as 
proteins, genes, gene sequences, cells, cell lines or tissues.  Several reports and studies have 
documented this phenomenon.  
 - In 1999, 918 patents on staples such as rice, maize, wheat, soybean and sorghum had 
been granted mostly to six agrochemical corporations.
1 
 - In 2000 an investigation uncovered that, as of November 2000, patents were pending or 
have been granted on more than 500,000 gen es and partial gene sequences in living 
organisms.  Of these, there were over 9, 000 patents pending or granted involving 
161,195 whole or partial human genes, while th e remainder related to plants, animals and 
other organisms.2  
 -  A 2005 study revealed that nearly 20 per cent of all human genes had been patented in 
the United States, in other words 4,000 of the nearly 24,000 human genes.3  
- A study noted that patent publications relating to animal cells and tissues multiplied 
about six times between 2000 and 2003 (three years) as compared to 1990-2000 (Ten years).
4  Another study in 2010 found that 660 patents had been granted on animals.5  
 - In 2008, a report revealed that about 532 patent documents had been filed by 
agrochemical corporations on "climate ready"  genes in plants that will be able to 
withstand environmental stresses such as drought, heat, cold, floods etc.6  According to 
the report, the patent claims also cover subs tantially similar geneti c sequence in virtually 
all engineered food crops.  Between 2008 and 2010, 1663 additional patents had been 
granted on genes and plant characteristics tolerant to climate changes and extreme 
climate conditions.7  
III. ETHICAL AND MORAL CONCERNS 
9. The patenting of life forms promoted by Article 27.3(b) raises serious ethical and moral 
concerns for many cultures and peoples around the wo rld.  These concerns have been raised in 
previous submissions on this matter by developi ng countries including by Bolivia in IP/C/W/545.8   
                                                      
1 Action Aid, "Crops and Robbers", October 2001. 
2 The GeneWatch and the Guardian, 2000, op.cit.  
3 National Geographic, 2005. 
4 Carlos M. Correa, "Trends in Intellectual Property Rights Relating to Genetic Resources for Food and 
Agriculture", background paper study paper 49, Commission on Genetic Resources for Food and Agriculture, 
October 2009. 
5 Stop Animal Patents, 2010. 
6 ETC Group, "Patenting the "Climate Genes" And Capturing the Climate Agenda", May/June 2008 
Communiqué. 
7 ETC, Gene Giants Stockpile Patents on "Climate-ready" Crops in bid to become "Biomassters", 
October 2010. 
8 For example see IP/C/W/206 Submission by African Group, September, 2000; JOB(01)/152/Rev.1 
Compilation of outstanding  issues raised by Memb ers, LDC proposals; IP/C/W/404, Submission African 
Group, June 2003.  IP/C/W/554 
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  10. The extension of patents to life forms and parts thereof as human inventions promotes the 
concept of commodification of life and reduces the va lue of life and nature to the merely economic. 
Such a vision is alien (and in some cases considered  intrinsically wrong) to the culture, beliefs and 
values of many societies, including indigenous peoples in developing countries, for which life is sacred and special, cannot be considered an inventio n of human beings and should not be treated as 
any other commodity.  
11. A system that treats human beings and the features that make life essential as a commodity 
reduces the value of life to an economic value and consigns humanity to a lower level of moral 
development.  Humanity and human progress should not be measured only or mainly in economic and commercial terms, but rather in te rms of human values and dignity. 
12. Moreover, Article 27.3(b) fosters biopiracy  as it facilitates appropriation of life forms and 
parts thereof that originate or that are sourced fro m developing countries and that have been sustained, 
conserved, discovered and even developed for cen turies by indigenous peoples and local communities 
for various purposes.  According to the 1999 UN Human Development Report, the current patent 
system is leading to the "silent theft of centu ries of knowledge" from developing to developed 
countries.
9  Thus in short allowing patenting of life forms is tantamount to condoning "theft" of 
knowledge developed collectively and used for millennia in developing countries. 
 13. In addition, the United Nations Declaration on the Rights of Indigenous Peoples, in many of its provisions, emphasizes the importance of the beliefs and the values of these peoples and the need to take them into account when agreements invol ve or affect those rights, values or beliefs.
10   
IV.  NEGATIVE IMPACTS AND CONSEQUENCES Concentration and monopoly  
14. A general worrying trend is that a few tran snational corporations now exercise monopolistic 
control over some of the most important sector s such as food, agriculture and health, a trend 
facilitated by the patent system.  In 2008, a report revealed how the top ten tr ansnational corporations 
in each sector controlled major segments of their re spective markets.  For example, 55 per cent of the 
pharmaceutical market, 89 per cent of the agroch emical market, 66 per cent of the biotechnology 
market and 26 per cent of the food and beverage market.
11   
15. A serious consequence of Article 27.3(b) has al so been the concentration of the control of life 
forms, in the private sector, in particular in the hands of a few transnational corporations based in 
developed countries.  For example, 67 per cent of th e proprietary seed market being controlled by ten 
transnational corporations, with one particular co rporation controlling nearly one quarter of this 
market.  In the agrochemical sector, two compan ies control nearly 40 per cent of the market.12  
                                                      
9 See p. 6 Human Development Report 1999, UNDP, available at 
http://hdr.undp.org/en/media/HDR_1999_EN.pdf. 
10 United Nations Declaration on the Rights of Indigenous Peoples among others recognize the 
"…urgent need to respect and promote the inherent rights of indigenous peoples which derive from their 
political, economic and social structures and from their cu ltures, spiritual traditions, histories and philosophies, 
especially their rights to their lands, territories and resources". 
11 ETC Group, "Who owns nature Corporate power and the final frontier in the commodification of 
life", November 2008. 
12 ETC Group, "Who owns nature Corporate power and the final frontier in the commodification of 
life", November 2008. IP/C/W/554 
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  16. The control a few developed countries' transn ational corporations have on life forms, and 
parts thereof should be a cause of concern as im portant decisions affecting people all around the 
world in areas such as health, food,  agriculture, climate change and environment, are being taken on 
the basis of profits and not the common good of human ity.  In addition, the research realized and the 
technologies developed are likely to have the effect of reinforcing the monopolies and the profits of a 
few transnational corporations while creati ng more dependence for developing countries. 
Access and use 
17. Patents on life forms have negative effects in terms of access because they enable the private 
right holders to increase the costs of access and even tually to deny it, with serious consequences in 
terms of health, food security and food sovereignty.  
18. A real concern to many developing countries is  the very real possibility that patents on life 
forms could be used to restrict the use of orga nisms and parts thereof by developing countries and 
their indigenous peoples.  Indeed, if uses or app lications of plants used by indigenous peoples in 
medicine or agriculture for example get patented , they could see themselves firstly, forbidden from 
using their own resources and continuing with thei r own practices so important for their livelihood 
and survival, and secondly, marginalized in vari ous ways from accessing the resources as a result of 
commercial exploitation.  
Trade and exports of developing countries 
19. Patents on life forms and parts thereof can al so adversely affect the exports and commercial 
activities of developing countries.  Various cases of such impacts have been documented.  For example the patent on the yellow bean Enola was u sed to prevent exports from developing countries, 
farmers to the United States or the patent of Monsanto that was used to block exports of soya meal 
from Latin America to Europe.  These cases indicate that a global solution is required to address 
concerns pertaining to the patenting of life forms and parts thereof.  As patents on life forms and their 
parts proliferate and the pressure to enforce IPRs in tensify, cross border trade in food and agriculture 
as well as other products is likely to be very much  affected with serious effects particularly for 
developing countries.   
Innovation 
20. The granting of patents on life forms and parts th ereof is often justified on the basis that it is a 
necessary incentive to facilitate innovation and to st imulate research and development.  However, 
there is increasing evidence that th is premise is fundamentally flawed  and that this dominant model of 
innovation also frustrates innovation, stifles research  and development and hinders science from fully 
benefiting the public.  
21. Some of the problems posed by this dominant model of innovation include:  (i) restrictions on 
access to information at different stages of innovati on, thus obstructing the free flow of scientific 
information and impeding scientific progress;  (ii) reduced or delayed information sharing among the 
scientific community as a result of patent requirements (e.g. that information must not be in the public 
domain at the time of filing);  (iii) licensing practices (e.g. narrow or exclusive licence terms) that 
have restrictive effects on innovation;  (iv) multiple licences may be required to access single 
technology or research tool, thus making access complicated, time-consuming and costly;  (v) uncertainty over the ability to obtain necessary li cences on fair terms and also conditions that 
discourage investment in research and development;  (vi) tendency to reward creative efforts that may 
lead to commercial gains and as a result hindering in novation of products that have vast societal 
benefit but a limited market;  (vii) patent specifica tions, which are meant to disclose the invention, are 
drafted by patent attorneys in a species of "legal ese" reducing the quality of the patents – this is 
central to the monopoly protection based on disclosure central to the legitimacy of the patent system 
as well as  mocking the commitment to innovation, values of open science and communication.  IP/C/W/554 
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  22. The above-mentioned problems are not a new di scussion subject.  They have been highlighted 
on numerous occasions by a number of prominent Nobel laureates, academics, and experts in the field of life sciences.  In our view, the review of Article 27.3(b) is an opportune occasion to take bold steps to address these concerns.  
IV. SPECIFIC CONSEQUENCES IN SOME SECTORS 
Food and agriculture  
23. The detrimental impact of allowing patenting of life forms and parts thereof is particularly felt 
in the area of food and agriculture.  As noted above, the current patent system has resulted in giving a handful of corporations unprecedente d legal control over the food chain.  The combination of market 
concentration with the ability to patent has pave d the way for a comprehensive takeover of genetic 
resources, seeds, and even derived products by a fe w corporations leading to concentrated corporate 
power, high costs, an increase of food prices, and inhibition of agricultural innovation as well as undermining of farmers' rights.  
24. For instance, a 2005 report documents how a particular American company filed 90 lawsuits 
against American farmers over supposed infringeme nt of seed patents and technology agreements, 
involving 147 farmers and 39 small businesses or farm companies.
13  The report notes that the result 
has been nothing less than an assau lt on the foundations of farming practices and traditions that have 
endured for centuries in this country and millennia around the world, including one of the oldest, the 
right to save and replant crop seed.  
25. Innovation in agriculture is dependent on the use of existing genetic materials for further 
research and breeding, which is central to the pr eservation of agro biodivers ity and the development 
of farmers' seed systems.   However, the monopoly rights of the patent system prevent access to the 
protected germplasm and varieties.  This problem is  exacerbated by the multiplicity of patent claims 
over the materials and broad patent claims.   For in stance, where functional claims are allowed, all the 
potential means to solve a problem may be covered. 
26. In addition, the scope of many of the patent  applications cover conventional breeding, with 
extensively broad claims that encompass all the plan t genetic resources, seeds, plants, the harvests and 
their use in food production, as well as the use of th e patented plants in la ter generations and after 
further crossings.14  Such applications and patents obstruct  the use of genetic material and breeding 
methods and ultimately hamper innovation.  
27. The adverse implications of patenting biological materials in the area of food and agriculture 
have been highlighted on numerous occasions. Th e UN Special Rapporteur on the Right to Food 
noted in his report to the UN General Assembly that  "the expansion of intellectual property rights can 
constitute an obstacle to the adoption of policies that  encourage the maintenance of agro biodiversity 
and reliance on farmers' varieties.  Intellectual pr operty rights reward and encourage standardization 
and homogeneity, when what should be rewarded is ag ro biodiversity, particularly in the face of the 
emerging threat of climate change and of the need , therefore, to build resilience by encouraging 
farmers to rely on a diversity of crops.  In additi on, intellectual property rights - particularly patents 
granted on plants or on genes or DNA sequences - ca n constitute a direct impediment to innovation by 
farmers".15  
                                                      
13 Center for Food Safety, "Monsanto vs. US Farmers", 2005. 
14 Christopher Then & Ruth Tippe (prepared for the international coalition of "no patents on seeds", 
www.nopatents-on-seeds.org), "The future of seeds and food under the growing threat of patents and market concentration", April 2009. 
15 Olivier De Shutter, Report of the Special Rapporteur on the right to food, 2009 (A/64/170). IP/C/W/554 
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  Climate change 
28. Profiting from the threat that climate change represents for humankind, and in particular for 
developing countries, various transnational corpor ations from developed countries have engaged in a 
rush to patent plants and parts of plants that c ould in the future represent strategic resources for the 
very future of humanity. 
29. A 2008 study revealed, during the climate cha nge negotiations, that a pproximately 532 patent 
documents have been filed by agrochemical corpora tions on "climate ready" genes in plants that will 
be able to withstand environmental stre sses such as drought, heat, cold, floods etc.
16   Between 2008 
and 2010, 1,663 patent documents were revealed with regard to genes and plant characteristics 
tolerant to climate changes and extreme climate conditions.17   
30. Noting this trend, the problems generate d for humankind by climate change would be 
compounded by the fact that transnational corpor ations hold 91 per cent of the patent families 
pertaining to traits tolerant to climate change.  On ly six of those transnational corporations control 
77 per cent of these patent families, while th ree of the companies control 66 per cent.18 
 
31. Concentration of strategic resources in the hands of a few transnational corporations in 
developed countries can have seri ous implications for developing  countries and indigenous peoples. 
Although the historical responsibility of climate ch ange lies with developed countries, it can be 
anticipated that developing countries will be asked  to pay for access to resources that are critical to 
combat climate change and that in certain cases they themselves developed. 
Health 
32. The public health consequen ces of allowing patenting of life forms and parts thereof can be 
rather severe.   Such patenting can have a negative impact on innovati on in the health sector, create 
obstacles in accessing relevant technologies as well as may hamper access to medicines, vaccines and 
to essential treatment. 
33. This has been amply demonstrated by patents on BRCA1 and BRCA2 genes, which are 
responsible for most cases of hereditary breast a nd ovarian cancers.  The patents granted to Myriad 
gave the company the exclusive right to perform diagnostic tests on the genes and to prevent any 
researcher from even looking at the genes without first getting permission from Myriad.  Myriad's monopoly made it impossible for women to access alte rnate tests or to get a comprehensive second 
opinion about their results and enable d Myriad to charge a high rate for their tests.  Recently, the New 
York Federal Court, recognizing the far-reaching im pact of the case on medical research and public 
health, declared the patents invalid.  This was so despite arguments by  Myriad that such patents were 
actually inventions.  
34. The issue of patenting of life forms and parts thereof is also being di scussed in the context of 
the Pandemic Influenza Preparedness:  sharing of  influenza viruses and access to vaccines and other 
benefits negotiations in the World Health Organi zation.  In this regard, significant concern has 
emerged that appropriation by developed countries' en tities of influenza biological material shared on 
a voluntary basis will hamper relevant scientific research and access to technologies and vaccines. 
Concern has also been raised that allowing appr opriation of biological material contributed for 
pandemic preparedness is unethical and thus cannot be condoned.   
                                                     
 
16 ETC Group, "Patenting the "Climate Genes" And Capturing the Climate Agenda", May/June 2008 
Communiqué.  
17 ETC, Gene Giants Stockpile Patents on "Climate-ready" Crops in bid to become "Biomassters", 
October 2010. 
18 ETC, Gene Giants Stockpile Patents on "Climate-ready" Crops in bid to become "Biomassters", 
October 2010.    IP/C/W/554 
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  V. CONCLUSION 
35. Allowing the patenting of life forms and parts thereof is simply unacceptable.  
36. As noted above, such patenting is consider ed unethical and immoral by many cultures and 
traditions.  It also legitimizes biopiracy.  
37. Further allowing the patenting of life forms and parts thereof is likely to have serious 
dangerous consequences for humankind,  in particular for developing countries.  The control of life 
forms, and parts thereof, is now concentrated in  the hands of a few transnational corporations 
quartered in developed countries that are able to exercise monopoly control and exclusive rights of use. Such a situation has critical consequences for developing countries as key decisions with regard 
to food, health or climate change that affect all peoples will be made primarily with the aim of 
maximizing profits.  These corporations are also in a position to dictate terms and conditions for 
accessing and using patented materials.  Patenting of life forms and parts thereof also threatens the traditional practices of indigenous peoples and p easants as well as the agricultural exports of 
developing countries.  It may frustrate innovati on and stifle research and development. Its 
consequences are particularly worrying in the cont ext of agriculture, food security, health and climate 
change.  
38. Allowing patenting of life forms and parts th ereof thus represents a danger for humankind and 
in particular for developing countries.  The costs greatly exceed the benefits.  It is a problem that the international community is facing as a whole a nd thus it requires an international solution. 
39. For all these reasons, Bolivia proposes to am end Article 27.3 (b) to prohibit all forms of 
patenting of life and parts thereof as an essential part of the mandate in the Doha Development Round 
and as an important contribution of the WTO to the development objectives.  
40. In this context, we would like to recall IP/C /W/545 wherein it is proposed that Article 27.3(b) 
be amended to prohibit the patenti ng of all life forms, including plants  and animals and parts thereof, 
gene sequences, micro-organisms as well as all processes including biological, microbiological and 
non-biological processes for the production of life forms and parts thereof. 
41. Bolivia's proposal to prohibit the patenting of  life forms and parts thereof might complement 
the "draft modalities for TRIPS related issues" in the sense that the obligation of disclosure would 
apply to patents claiming inventions  developed using life forms and parts thereof, while the life forms 
and parts thereof themselves should not be considered patentable subject matter. 
 
 
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